Adarsh Pal Singh And Ors. vs Didar Singh And Ors.
1995 Latest Caselaw 698 Del

JUDGMENT

C.M. Nayar, J.

(1) The present judgment will dispose of two Appeals, Fao No. 168/92 filed by the claimant for enhancement against the award dated 28th January, 1982 passed by Shri P.R. Thakur, Judge, Motor Accident Claims Tribunal, Delhi and Fao No. 130/82 filed by New India Assurance Company Ltd. impugning the finding of the Tribunal that the Insurance Company will be liable for the entire amount of the Award. The appellant, Adarsh Pal Singh, was a pillion rider of two- wheeler scooter No. Dhn 3811 driven by one Satish Chander on 27th August, 1977 near the turning of Joshi Road and New Rohtak Road. The truck bearing registration No. MTT3023 coming from Joshi Road side suddenly took a turn towards right side without giving any horn or indication and struck against the scooter and as a result of the said impact the scooterist and the appellant who was the pillion rider were thrown from the scooter while the scooter came under the truck. It got entangled with the truck which did not make it possible for the truck driver to run away with the truck. The said vehicle belonged to respondent No.2 and was being driven by respondent No.1. It was insured with M/s New India Assurance Co. Limited, New Delhi. The criminal case was registered at police station against the truck driver. The appellant was aged about 32 years at the time of accident and married with two children. He was doing business in partnership with his father and prior to the accident, he was looking after the business and was responsible for the working of the said partnership. The accident caused loss to the appellant because he could not attend to his business and greatly disturbed his marital life as well. The claim petition was filed under Section 110-A of the Motor Vehicles Act, 1939 for compensation of Rs. 2 lakhs. The respondents contested the petition. The written statements filed on their behalf were identical. It was alleged that the appellant had voluntarily suffered the injuries due to his own negligence and misconduct and due to rash and negligent driving of the driver, Satish Chander. The ownership of the vehicle, the name of the driver and the insurance company were admitted by the respondents. It was reiterated that the scooter was driven at a very fast speed without following the traffic rules and both the driver and the appellant were in a state of alcoholic intoxication. It was further alleged that the scooter skidded as a result of negligent and rash driving and both the driver as well as the pillion rider were thrown off the scooter before it hit the truck which had already come to halt and was stationary when the scooter collided with the same. The following issues were framed:- 1. Whether the accident was caused due to rash and negligent driving of truck No. Mtt 3023 on the part of respondent No. I? 2. Whether the accident was caused due to negligence of petitioner himself? 3. To what amount of compensation, if any, is the petitioner entitled and if so from whom? 4. Relief. The Tribunal considered the evidence on record The appellant in his statement deposed that he was sitting on the pillion seat of the scooter which was being driven by Satish Chander. According to him, the scooter was at a slow speed and had taken a turn towards Joshi Road on the left side when the truck in question coming, from the opposite direction, came to the wrong side and hit against the scooter. He deposed that the truck was being driven at a fast speed and no horn or signal had been given by the driver. He further stated that he was thrown away as a result of the impact and became unconscious. He denied the suggestion that at the time of the accident he was intoxicated or that the scooter had skidded when the brakes were applied or that the scooter had hit against the stationary truck. To similar effect the statement of the scooter driver Public Witness 3 Satish Chander was made. Pw 5 Hans Raj, S.I was the Investigating Officer in the criminal case and he proved a copy of the site plan as Exhibit Public Witness 5/1. The statement of respondent No. 1 was recorded and he deposed that the scooter was coming at a high speed and on seeing the scooter he applied the brakes. The driver of the scooter got nervous and lost control of the scooter and as a result fell down and the scooter came under the truck which was stationary at that time. In his cross-examination, this witness admitted that he had made a confessional statement before the Criminal Court and copy of the said statement was proved as Exhibit Rw 1/1. On the face of the admission of respondent driver that he voluntarily made the confessional statement in the Criminal Court, the negligence on the part of the truck driver was clearly established. Therefore, the said driver had also been convicted on his plea of guilty. The Tribunal accordingly held that there was no doubt that the accident in question had been caused due to rash and negligent driving on the part of respondent No. I This issue does not require any modification on the basis of the evidence which has been recorded in the case.

(2) The Tribunal next discussed the injuries suffered by the appellant and their nature and the period of hospitalisation and treatment. PW1 Dr.A.K. Singh who had also appeared as Public Witness 7 treated the appellant in the Irwin Hospital where he was admitted on27th August, 1977. According him, the appellant had suffered severe crushed injury of the right elbow with badly comminuted fractures of the humeral condyle, fracture of the third, fourth and fifth ribs of the left side and fracture of the right tibia. He deposed that the injuries had resulted into fixed deformity of the right elbow which was handicapped, having no movement. The movement of the right elbow was completely restricted and nothing was feasible so far as its cure was concerned. PW2 Dr. Amit Banerjee from Gb Pant Hospital deposed that the patient had been transferred to the department of Cardiothoracic Surgery in the hospital on 31st August, 1977. He further deposed that the patient had been admitted in the hospital on that date and discharged only on 19th September, 1977. Public Witness 6 is appellant himself who stated that he remained admitted for 4 days in the Irwin hospital, for 19 days in Gb Pant Hospital and in the Titrath Ram hospital for 3 days. According to him his right elbow had been crushed and consequently, there was shortening of arm and was permanently disabled. He had been examined by a Board of Orthopaedic Surgeons under the orders of the Tribunal on 27th February, 1981. The certificate issued by the Board gave the opinion of the two experts that the appellant has a stiff right elbow following an injury to the elbow, there is a total loss of movement in the elbow which is fixed at about 150, that as a result of this deformity, the appellant has considerable loss of function in activities of daily living and the percentage of his disability is above 50%. Dr. A.K.Singh who appeared as Pw 7 made similar statement. The appellant further stated that he remained bedridden for 9 months. The various documents regarding purchase of medicines indicated that he continued to purchase the medicines till the beginning of the year Motor vehicles Act, 1939. 1978. The Tribunal proceeded to determine the amount of compensation in the light of the injuries received by the appellant including the amount payable as general damages. The following conclusions as arrived at by the Tribunal may be reproduced as follovvs:- "AS regards the period of hospitalisation and treatment, in addition to 26 days of hospitalisation detailed by the petitioner in his statement, the petitioner, according to his statement, remained bed-ridden for 9 months. The various documents regarding purchase of medicines etc. Ex Public Witness 2/9 to Ex. Public Witness 6/14 show that the petitioner continued to purchase the medicines till the beginning of the year 1978. The petitioner also had been getting X-rays done till about April, 1978 as it is clear from the documents Ex. Public Witness 6/2 to Ex. Public Witness 6/8. In the light of these facts, it may now be determined as to what amount of compensation should be awarded to the petitioner as general damages. Keeping in view the fact that it is the right hand of the petitioner which has been completely disabled, it is not difficult to visualise the difficulties which the petitioner must be suffering in his day to day life. There can be no two opinions about the fact that no amount of money can bring back the meaning of life to the petitioner and compensate the suffering which he has undergone and the pitiable condition to which he has been rendered by the accident. In fact, he is completely crippled and paralysed so far as his right hand is concerned. And this crippled life he has now to bear with all through his life. He has been denied the pursuit of normal avocations and pleasures of life. One thing which is important to note in this connection is that there is no cure in India of the disablement which the petitioner suffered due to the instant accident. The petitioner in fact wanted to go abroad for medical treatment, which entailed medical expenses of about 2000 pounds and this fact is clear from the form EX. Pw 6/15 signed by the two expert doctors for enabling the petitioner to seek the foreign exchange for his medical treatment abroad. This shows that further treatment of the injury suffered by the petitioner was not possible in India....."

(3) On the basis of the above facts the following award was made under the respective heads in favor of the appellant :- 1.For injuries sustained including permanent disablement suffered Rs. 30,000 2. Physical pain and suffering, including mental agony and torture Medical expenses Special diet during the period of hospitalisation and treatment Loss of business Engagement of driver/Transport etc. Engagement of assistant due to permanent disability of his right arm Total Rs. 10,000 Rs. 4,000 Rs. 1,500 Rs. 8,000 Rs. 3,000 Rs. 5,000 Rs. 61,500

(4) The learned Counsel for the appellant-claimant has vehemently contended that the appellant suffered grave injuries which required long periods of hospitalisation as well as permanent disability and the amount awarded by the Tribunal is neither just and fair nor adequate. In the facts of the present case as indicated above the award, therefore, requires to be enhanced as it does not take into account the nature of injuries and the pain suffered by the appellant as well as permanent disability which is to the extent of 50%. The award for pecuniary as well as non-pecuniary damages including general damages is grossly inadequate. The learned Counsel has referred to the judgments as reported in Tejinder Singh Gujral v. Inderjit Singh & Ors. 1988 Acj 407, Mangal Kishore Kaul v.Union of India & Ors. 1989 Acj 786, Amar Nath Goel v. Mayur Syntax Ltd. 1990 Acj 93, and Ramesh Chandra v. Randhir Singh & Ors. 1990 Acj 777. In Tejinder Singh Gujral v. Inderjit Singh & others (supra), the injuries were caused to a lawyer who suffered great incapacity in his professional performance due to subsisting pain resulting in loss of income and was unable to pick up weight or drive. The compensation in the facts of that case was enhanced for mental agony, shock, pain and suffering from Rs. 50,000.00 to Rs. one lakh and the learned Judge clearly was of the opinion that the award has to depend on the nature of the injuries caused, subsisting agony, shock, pain and suffering and its duration. This Court in Amar Nath Goel v. Mayur Syntax Ltd. (supra) considered the aspect of damages on account of physical pain and suffering, loss of future earning as well as general damages. The following paragraphs may be of some interest :- "37.The determination of amount of general da mages is mostly a difficult . question. The sum to be awarded is always dependent upon all the detailed circumstances of the case. "No one knows what is the right sum of damages in any particular case and no two cases are alike."

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(Singleton, L.J. in Waldon v. War Office, 1956(1) Wlr 51). 38. What amount should I award to the plaintiff on account of physical pain and mental anguish and future loss of earning? Before determining the amount let me summarise the findings which emerge from the afore- said discussion and analysis of evidence.    (1) The plaintiff was employed with defendant on a salary of Rs. 3000.00 p.m. at the time of accident. (2) The accident was not because of any act of God. (3) Defendant had not exercised due care and attention in constructing collapsed portion of the building (4) Plaintiff sustained grave and serious injuries as a result of the collapse of the wall of the building. (5) Plaintiff is permanently disabled. (6) Plaintiff suffered physical pain and mental anguish as a result of the injuries. (7) There has been loss of future earnings of the plaintiff. 39. Money cannot renew a shattered human frame still the law has said that this is a head of damages for which monetary compensation can be